Ladies, go see the documentary, “RBG”

Last night I saw the movie, “RBG”, a documentary about Justice Ruth Bader Ginsburg. It was inspiring. I have never considered myself a feminist but as a professional woman who has never felt an urge to live the domestic life, this film lit a fire. It should be required viewing for all American women but specifically for any woman who is a professional, a single parent or is the household breadwinner.

And this is why: despite all of our developments in discrimination laws, women still are not legally treated on an equal basis as men and the Supreme Court does not apply the same scrutiny to cases regarding gender discrimination as it does in cases involving all other discrimination under the Fourteenth Amendment. Women have been provided with a lot of “opportunities” since the 1960’s but with a conservative government enacting legislation those “opportunities” have largely not been legally recognized (or, if legally recognized, are being considered for repeal) and our judiciary does not consider these “opportunities” as rights.

Ruth Bader Ginsburg spent her early legal career as a victim of gender discrimination. Despite the fact that she was on the law review at Harvard (only 25 people in a class of 545 were on the law review that year), she could not get a single job at any law firm in New York City when she graduated. None. To put this in perspective, I once worked at an office who hired a Harvard law grad with less than average grades who did not know how to type nor did he have basic computer skills for a job in which he would have to do all of his own typing and almost all of his communication was done online. He did not have the skillset that would serve him for the job for which he was hired but he got the job simply because he was a Harvard law grad and our company could brag about having him. Ginsburg was top 2% of her class at Harvard and could not get a job!

Because she was unable to get a job at a law firm, Ruth Bader Ginsburg taught. She taught women and the law. She fought for women who wanted to be professionals instead of housewives and for women who had to work because they did not have the luxury of staying home with their children. She joined the ACLU in the 1960s because the ACLU was realizing that women were underrepresented in the law.

The first case that Ruth Bader Ginsburg argued before the Supreme Court as an attorney was for equal benefits provided to women by the US military. As outlined in the 1973 US Supreme Court case of Frontiero v. Richardson, Mrs. Frontiero, a nurse and officer in the US Air Force, did not qualify for a housing allowance as was provided to her male counterparts with the exact same ranking solely because she was a woman. She was the breadwinner in the family supporting her husband who was going back to school. Ginsburg won the case, but she did not get the standard of review she wanted from the Supreme Court — strict scrutiny for gender discrimination.

U.S. courts apply the strict scrutiny standard in two contexts: when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or “liberty clause” of the 14th Amendment, or when a government action applies to a “suspect classification,” such as race or national origin. The US Supreme Court did not believe that any fundamental rights were being denied nor that the 14th Amendment was being violated nor that women were a part of a suspect classification. It still doesn’t.

Ginsburg asked for strict scrutiny in every gender discrimination case she argued in front of the Supreme Court. She never got that scrutiny. Every women’s rights case she has heard as a justice on the Supreme Court, she has asked for the strict standard to be applied. It has not been applied. The United States Supreme Court does not believe that fundamental human rights are being systematically denied to women.

This fact could not have been made clearer when the US Supreme Court time barred Lilly Ledbetter’s lawsuit against Goodyear Tires for violation of the Title VII of the Civil Right’s Act (prohibiting unequal pay for equal work performed). As Ms. Ledbetter was about to retire as a production supervisor at a Goodyear plant in Alabama, she found out that she was making 40% less than her male counterparts in the exact same position with the exact same seniority. The Supreme Court acknowledged that she was discriminated against but barred her from from filing suit because she did not make her claim within the 120 days of the discriminatory act as outlined in the Civil Right’s Act. She didn’t know within 120 days and would never had known had it not been for an anonymous whistleblower.

The equal pay law has been changed as a result of the Ledbetter case, so ultimately there was a win. The new law is called the Lilly Ledbetter Fair Pay Act of 2009. However, there are many lawmakers in the current conservative Congress who would like to repeal the law enacted during the Obama presidency. If it does get repealed, the current US Supreme Court would likely not consider this a violation of women’s rights.

This is a problem. If this country continues to elect more conservative lawmakers, then the standing of women as a whole is at jeopardy. Have you seen or read The Handmaid’s Tale? It has a basis in reality and there is a reason why you should be worried now instead of when it is too late to do anything about it.

Here’s a little history on the Fourteenth Amendment. It was enacted when slavery became abolished and was meant to provide former slaves with the same rights as every other American citizen. Few people know that Article Two of the Fourteenth Amendment gives every “male” over the age of 21 the right to vote and be represented in government. Thus, the Nineteenth Amendment was enacted and gives women the right to vote but the text does not mention governmental representation.

There were concerns that the Fourteenth and Nineteenth Amendments would be narrowly interpreted and exclude from women the same basic human rights as those given to men. This is an entirely valid point. US Supreme Court justices tend to come in two basic flavors: (1) the kind who believe that the US Constitution is a living breathing entity that should be broadly interpreted to fit the nation as it currently exists or (2) the kind who believe that the constitution is fixed in time, all of the Amendments should be strictly construed as they would have been at the time the words were written and the legislature should amend the constitution to reflect the changes in the country. As the make-up of the Supreme Court changes over time, then how the constitution is interpreted changes, too.

Thus, to prevent a strict interpretation of the Fourteenth and Nineteenth Amendments, the Equal Rights Amendment was enacted to give women equal standing with men. It was passed by US Congress in 1972. However, in order to amend the US Constitution, the states have to ratify it. Ratification from 38 states were needed and ultimately the states had until 1982 to ratify the amendment. By 1977, 35 states ratified the proposed amendment, and by 1978, four states rescinded their ratification. Despite being brought up for renewal every year since 1982, the Equal Rights Amendment has not been ratified by the states. Therefore, strictly speaking, American women do not have formal equality before the law. I’ll repeat that on a separate line for effect:

American women do not have formal equality before the law.

Let that sink in.

Things are clearly different now than they were in the 1950’s. I graduated from the University of Miami School of Law with average grades and had no problem getting a law firm job in the south. I was actively recruited to do what was essentially considered a man’s job in a publicly traded company.

I also made approximately 20% less than one of my male counterparts at that company who put in less work than I did, had less knowledge and who absolutely refused to make decisions. But it was a terminable act for me to discuss my pay with my co-workers and I was afraid to say anything. I was in an at-will position which means that my employer could let me go with or without cause at their will.

I knew firms who didn’t hire women with children. And during those after work happy hours when another woman said they wanted kids, we would shush them because we knew that if the managing partner found out, they would be given less cases until they didn’t have enough work to make their required billable hours and would lose their jobs.

I should be happy I have the right to vote. Actually, I am delighted for that. Because from now on, I will only support lawmakers who make it their mission to make sure the Equal Rights Act gets ratified.